The major parties must ensure that any amendments they make to Greg Piper's port bill do not render it meaningless.
The opposition announced on Tuesday that it would seek to amend legislation tabled by the Lake Macquarie MP which aims to scrap penalties on Port of Newcastle developing a container rival to Port Botany and Port Kembla.
The proposed amendments appear to place responsibility for extinguishing those PoN liabilities in the hands of the treasurer in a future government.
If this is the case, will there be anything in the amended legislation to stop the next government simply ignoring it?
The amendments say the treasurer can extinguish the PoN liabilities only if an independent reviewer has certified that the owners have "shown a genuine commitment" to building a terminal.
It remains to be seen what such a guarantee would look like.
Newcastle MP Tim Crakanthorp says the amendment is designed to stop PoN selling off its port lease at a "windfall" profit once the bill is passed.
The port argues it has no intention of selling up, but Labor is entitled to look for safeguards.
A government-created monopoly over former public assets is not a good look; nor is a private consortium profiteering from legislation which unpicks that monopoly.
(Another school of thought holds that it does not matter in the grand scheme of things if PoN sells the lease at a quick profit, and any such sale would end concerns about the port's 50 per cent Chinese ownership, especially as the harbour is in the mix to host a nuclear submarine base.)
Mr Piper's bill does not directly affect NSW Ports' contract; the private consortium that leases Botany and Kembla still would be entitled to compensation from the government if PoN or someone else developed a rival terminal in Newcastle.
But the legislation would be a gift to Port of Newcastle, which knew it was buying into a container market in which someone else held a monopoly.
A Federal Court judgment last year, in a case brought against the privatisation deals by the Australian Competition and Consumer Commission, would have given Labor pause for thought.
Justice Jayne Jagot found the chances of Newcastle building a large-scale container terminal were "fanciful" and "infinitesimal" and the viability of such a terminal remained "highly questionable".
Port of Newcastle clearly disagrees. It says it has started the first stage of a future terminal by installing two expensive cranes at Mayfield and has $2.4 billion in investment ready to go if the penalties are removed.
PoN is entitled to handle 30,000 containers a year under its lease deal without paying a penalty. Monthly reports on its website show it has moved 2587 in the past year.
Standing perhaps in counterpoint to Justice Jagot's assessment is a recent Productivity Commission report which found "privatisation processes" in NSW had "conferred protection on port lessees that are impeding economically efficient outcomes in the development of the state's ports system".
Under Labor's proposed amendments, a future treasurer, before extinguishing the Newcastle penalties, must be satisfied that a terminal is feasible without "taxpayers having to build major infrastructure, unless it is in the public interest to do so".
On this point, the port says it is not looking for any public money.
The treasurer also must make "all reasonable efforts" to ensure that no compensation is payable by the Crown to the lessee of Port Botany and Port Kembla.
The proposed amendments also say, if somewhat clumsily, that a NSW government ports strategy must consider the needs of Kembla and other ports, including their needs in relation to renewable energy zones.
There appears plenty of wriggle room for a future treasurer, Labor or Liberal, to step around the legislation and maintain the status quo, which effectively locks Newcastle out of the state's container market.
The Coalition has not yet publicly supported changes to the agreements it made when it sold long-term leases to NSW's three state-owned ports almost 10 years ago.
What the public (and Parliament) did not know until the Newcastle Herald revealed the arrangement in 2016 was that the Baird government had established a monopoly.
Under the deals, the state promised to compensate NSW Ports if Newcastle started moving containers above the 30,000 cap. The government's contract with Port of Newcastle requires PoN to reimburse the state for any payments it must make to NSW Ports.
It is this latter "straitjacket" on Port of Newcastle which Mr Piper's proposed legislation aims to remove.
Mr Piper, frustrated at a lack of action from the government and opposition on the issue, tabled his "simple" bill in the hope of bringing both sides to the table.
It was inevitable it would need refining.
But that refinement must not neuter the bill of its purpose, which is to "level the playing field" in the state's freight market. Mr Piper said on Thursday that he remained "committed to the bill's intent".
It is a tough sell for the government. A central ideology of the Coalition's 11-year reign has been privatising public assets to fund services and infrastructure.
Unpicking the Newcastle deal would be an admission that, in the case of the port privatisations, they got it wrong.
The Nationals have a clear mandate from the rank-and-file to resolve the port issue, but the party leadership has yet to come out strongly in favour of a legislative fix.
Labor is wary of being saddled with expensive compensation payments if it forms government next year and inherits an $11 billion budget deficit.
Opposition MPs were vocal in support of PoN's plans before Mr Piper tabled his bill. The amendments suggest Labor is moving carefully towards supporting the legislation, but it remains to be seen how committed the party is to a bill with real teeth.
It is now time for all the major parties to lay their cards on the table.
If a future government is convinced a container terminal in Newcastle is viable and the port's operators are committed to building one, it is in the public interest to have legislation in place which obliges the government to scrap the penalties.
WHAT DO YOU THINK? We've made it a whole lot easier for you to have your say. Our new comment platform requires only one log-in to access articles and to join the discussion on the Newcastle Herald website. Find out how to register so you can enjoy civil, friendly and engaging discussions. Sign up for a subscription here.
